State ex rel. Ashton v. Register of Deeds of Ramsey County
| Decision Date | 28 June 1880 |
| Citation | 6 N.W. 337,26 Minn. 521 |
| Parties | State of Minnesota ex rel. Julia D. Ashton v. Register of Deeds of Ramsey County |
| Court | Minnesota Supreme Court |
Appeal by the register of deeds from an order of the district court for Ramsey county, Wilkin, J., presiding, directing the issuance of a peremptory writ of mandamus.
The order allowing a peremptory mandamus reversed.
E. G Rogers, for appellant.
Frederick Allis, for respondent.
The acts of the legislature in question are unconstitutional, as they conflict with Const. art. 1, § 2. The lands being allodial (Const. art. 1, § 15,) the right to transfer them is a right of the owner and her grantee. The recording act (Gen. St. 1878, c. 40, § 21,) compels one to record his deed before he can perfect his title. The protection of the recording act is at least a privilege, if not the right of every purchaser of land. The acts under which the defendant protects himself deprive the relator of these privileges, and not by the law of the land.
These acts compel the purchaser to pay these taxes without giving him an opportunity to be heard to contest or correct the tax. The tax becomes a lien on December 1st, and must be paid before a deed can be recorded on that day, though the opportunity to be heard occurs long afterwards. The effect of the act is to compel the purchaser to pay the taxes, whether void or otherwise, and without his day in court. Such a provision is clearly unconstitutional. Cooley on Taxation 265-268. Such an act is not within the functions of the legislature. An act directing money to be paid for taxes whether legal or illegal, would not be legislation, but in the nature of judicial action. Tyson v. School Directors, 51 Pa. St. 9. If the disability to record the deed is to be regarded as a penalty for non-payment of taxes, the act is unconstitutional under the rule that no penalty can be imposed without a judicial investigation, and an opportunity to be heard to contest the delinquency. Cooley on Taxation, 313-315.
It is no answer to this to say that the purchaser may contest the tax, or "mandamus" the auditor, for during this delay he may lose his title by a subsequent deed being put on record in the meantime; Ex parte Goodell, 14 John. 325; nor that the purchaser might bring a suit for his damages, for the damages from loss of his title might be far beyond the ability of the auditor to pay. Strong's Case, Kirby, (Conn.) 345. Nor is it any answer to say that the purchaser may pay the tax under protest, and recover it back by suit, for (1) it is at least a moot question whether he could recover it back; and (2) it would be as unlawful for the state to force him to advance money, and endure a long and expensive lawsuit about the tax, as it would be to deprive him of the benefit of the recording act; and (3) the privilege of the purchaser to record his deed is a privilege to record it without paying anything illegal under protest.
It is a fallacy to say that because the legislature may take the fee of the land by forfeiture for non-payment of the tax, therefore it may impose this incapacity of transfer upon lands upon which taxes are not due. (1) The forfeiture is always a proceeding to collect the tax. The land is taken and the tax is paid, and the owner discharged of it. But these acts have no such purpose. They take away the right of alienation from the land, but do not discharge any portion of the tax. After the disability is imposed, the tax remains as before, and the land is still liable for it. (2) No forfeiture can take place, without giving the owner his day in court.
It is unconstitutional to impose any other penalty than a money penalty for non-payment of taxes. The only theory on which a penalty is allowed is as a compensation for delay and cost of collection, and it is always a percentage on the amount of the tax. Scammon v. City of Chicago, 44 Ill. 269, 278.
Mary Jane Ashton, being owner in fee of certain real estate in the city of St. Paul, on September 21, 1877, conveyed the same to the plaintiff, by warranty deed, duly executed and acknowledged; and on October 24, 1877, J. H. Ashton and others, having an interest in certain real estate in said city, conveyed the same to the plaintiff, by a quitclaim deed, also duly executed and acknowledged. Neither of the deeds having been recorded, the plaintiff, on September 10 1879, presented the same to the defendant, as register of deeds, at his office, for record, tendering the proper fees. Neither of the deeds had indorsed or...
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